Camp v. Gourley

• Decision Date: 14 February 1918
• Docket Number: (No. 801.)
• Citation: 201 S.W. 671
• Parties: CAMP et al. v. GOURLEY et al.
• Court: Texas Court of Appeals

201 S.W. 671

CAMP et al. v. GOURLEY et al.

(No. 801.)

Court of Civil Appeals of Texas. El Paso.

February 14, 1918.

On Rehearing, March 7, 1918.

Error from District Court, El Paso County; Ballard Coldwell, Judge.

Action by H. D. Camp and another against D. W. Gourley and others. To review a judgment on the merits in favor of Gourley against plaintiffs, plaintiffs bring error. Reversed and rendered.

E. J. McQuillan and Ware & Norcop, all of El Paso, for plaintiffs in error. J. C. Brooke, Nichols & Robinson, and Lea, McGrady & Thomason, all of El Paso, for defendants in error.

HIGGINS, J.

D. W. Gourley was the owner of a herd of dairy cows in the city of El Paso which he sold to H. D. Camp and J. S. McDaniels, plaintiffs in error. In part payment therefor, Camp and McDaniels executed and delivered to Gourley a promissory note in the sum of $5,000. This note was indorsed and delivered by Gourley to Jackson & Harmon and by the latter to the First National Bank of Alpine. This suit was brought by Camp and McDaniels for a rescission of the contract of sale and to cancel the note sued upon, also to recover damages against Gourley and Jackson and Harmon, alleged to have been sustained by Camp and McDaniels because the cows were alleged to be infected with tuberculosis at the time of the sale. It was alleged that in making the sale Gourley acted for himself and as agent of Jackson & Harmon, and that he made false representations concerning the health of the cattle. It was alleged further that the bank was not the holder of the note in due course of trade and in good faith, but acquired the same with notice of the fraud practiced upon Camp and McDaniels. The bank filed a disclaimer of any interest in the note, setting up that the note had been taken up by Jackson & Harmon and retransferred to them. Jackson & Harmon filed a plea of privilege, setting up their right to be sued in Brewster county, where they resided. Gourley filed a denial of the allegations of the petition and a cross-action for the sum of $135, alleged to be a balance due upon the purchase price over and above the note in controversy.

The case was submitted to a jury upon special issues and upon the answers returned, the plea of privilege of Jackson & Harmon was sustained, and the suit as to them transferred to Brewster county. Judgment upon the merits was rendered in favor of Gourley against Camp and McDaniels, who sue out this writ of error.

Assignments 1 to 10, both inclusive, are predicated upon bills of exception filed after the time had expired granted by the court in the order extending the time within which to file same. These bills of exception are therefore not entitled to consideration. Byrne v. Texas, etc., 198 S. W. 600; Canal Co. v. Quinn, 160 S. W. 151; Criswell v. Robbins, 152 S. W. 210; Loeb v. Railway Co., 186 S. W. 378.

There is no complaint made of the judgment sustaining the plea of privilege of Jackson & Harmon and transferring to Brewster county the venue of the suit as between Camp and McDaniels, on the one part, and Jackson & Harmon, on the other part, but it is asserted that the sustaining of this plea necessarily transferred to Brewster county the plaintiff's cause of action against Gourley, and that it was error to render judgment in favor of Gourley upon the merits. This assignment is well taken. Article 1832 provides that, if a plea of privilege is sustained, the cause of action shall not...